Editor’s Note: Seth B. Waxman, a partner at the Dickinson Wright law firm in Washington, served as a federal prosecutor in the United States Attorney’s Office for the District of Columbia and has worked as a criminal defense lawyer in Washington and New York. The opinions expressed in this commentary are his own.
Much is being made of the leaked topic areas relating to Robert Mueller’s impending testimonial showdown with President Donald Trump. Having worked for 13 years as a federal prosecutor in the Clinton, Bush and Obama administrations, I can report that the reasons why the questions, crafted by the Trump legal team after consultation with the special counsel’s office, were leaked are far more interesting than the leaked information itself.
First, the leaked information: In complex criminal cases, it is simply not unusual for prosecutors to disclose information or evidence to a target or subject of an investigation; it is called a “reverse proffer.” Through such disclosures, prosecutors seek to advance the government’s case. For example, oftentimes, prosecutors disclose specific incriminating evidence against a target or subject in an effort to flip that person against higher level members of a conspiracy. Prosecutors essentially lay out key evidence and say, “We got you; it’s time to cut a deal.”
In this case, Mueller’s disclosure served a different prosecutorial purpose. By providing the general topic areas to the President’s lawyers, Mueller short-circuited a lengthy court battle, which he would have ultimately lost, without giving away anything important about his investigation.
Months ago, Trump’s lawyers likely informed Mueller that the President needed to consider whether to take legal action to restrict Mueller’s questioning based on executive privilege, the Fifth Amendment, or other grounds. To do so, the President required an understanding of Mueller’s topic areas.
While Mueller could have refused such a request, a federal judge would likely have required Mueller to disclose enough information for the President’s lawyers to make those important legal determinations. It was entirely in Mueller’s interest to voluntarily provide the information to avoid protracted litigation, which would have only delayed the opportunity to question the President.
Not only were the disclosures fairly routine, but they were also done in such a way as to provide the President and his lawyers virtually no visibility into the actual questions Mueller’s team intends to ask the President. Based on the questions published by The New York Times, Mueller’s topic areas were taken, almost literally, from headlines in any leading publication or cable news show during the last year.
Is there any doubt as to the President’s answer to the question: What knowledge did you have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign? My guess as to the President’s answer: Nothing.
The dozens of topic areas posed by Mueller are barely the tip of the iceberg. Mueller’s team will have hundreds, if not thousands, of follow-up questions based on emails, text messages, bank records, and statements from cooperators, much of which is entirely unknown to the President and his lawyers. No doubt Mueller is holding back pieces of information that could surprise the President and increase the likelihood of damaging admissions. And, the President should without question expect multiple days of questioning. This is not a two-hour Stormy Daniels deposition.
On to the more interesting point: why the information leaked. The President’s lawyers likely believe, correctly so, that the President will never be criminally indicted while in office. A sitting president has never been charged with a crime, and there are substantial constitutional hurdles to doing so. Instead, the President’s lawyers likely believe the ultimate battle will take place in Congress through impeachment proceedings.
By pre-emptively leaking Mueller’s topic areas, the President’s team accomplishes several related goals: (1) The President has an opportunity to publicly attack the topic areas and craft his own counter-narrative; (2) With the passage of time, Congress and the American people may become numb to the issues before Mueller refers the matter to Congress; and (3) The wind is taken out of Mueller’s sails and of any potential report he makes to Congress.
A common defense strategy in routine criminal cases is to “front” bad facts or information to the jury, so as to control the message and spin the discussion in a way that is most favorable to the defense. Because the audience in impeachment proceedings is Congress and the American people, “fronting” the information in this case means releasing it to the public.
Rudy Giuliani’s hiring fits squarely into this strategy. Giuliani has not practiced as a criminal defense lawyer for years. But impeachment proceedings are entirely a political process, and Giuliani is a master at political maneuvering, including catering to the President’s base and to Republican members of Congress.
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Trump’s endgame is likely focused on the 34 Republican senators he will need to stave off removal from office if impeachment articles are issued by the House of Representatives.
The Constitution requires the vote of two-thirds of the Senate to remove a president. When President Richard Nixon was informed that no more than 15 Republican senators still supported him after the Watergate revelations, making him vulnerable to removal from office, he resigned.
By hiring Giuliani, President Trump is trying to best position himself with the only people who ultimately matter in this case: Republican senators who will stick by him to the end and save his presidency.